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257.3 Entrapment

    257.3.2 Entrapment: Basis For Instruction

    257.3.2.1 Entrapment: Single Witness Sufficient
    257.3.2.2 Entrapment: Only Slight Evidence Necessary To Require Instruction
    257.3.2.3 Entrapment: Permissible And Impermissible Governmental Conduct
    257.3.2.4 Entrapment: Defendant’s Belief That He Or She Was Acting As Police Informant Or Agent
    257.3.2.5 Entrapment: Where Government Supplies And Purchases The Drugs Or Narcotics
    257.3.2.6 Entrapment: Use Of Sexual Acts Or Romantic Promises As Entrapment
    257.3.2.7 Entrapment: Defendant's Feeling "Under Pressure" From Police Sufficient For Instruction
    257.3.2.8 Entrapment Available Despite Failure Of Defendant To "Take The High Road" In Response To Police Pressure

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PRACTICE NOTE: Testimony of a single witness is sufficient to require instruction on entrapment. (People v. Lemus (CA 1988) 203 CA3d 470, 477 [249 CR 897]; People v. West (CA 1956) 139 CA2d Supp 923, 925.) Doubts as to sufficiency of evidence to warrant instruction should be resolved in favor of the defendant. (People v. Romo (CA 1990) 220 CA3d 514, 519 [269 CR 440].)

See also generally, FORECITE National™ 305.5.4 [Entrapment].

See FORECITE National™ 257.3.1.1 [Entrapment: Federal Test].

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PRACTICE NOTE: In U.S. v. Becerra (9th Cir. 1993) 992 F2d 960, 963, the 9th Circuit described the defendant's right to an entrapment instruction in a federal trial as follows: "A defendant is entitled to an entrapment instruction if he can present some evidence that a government agent induced him to commit a crime that he was not predisposed to commit. [Citation] Only slight evidence will create the factual issue necessary to get the defense to the jury, even though the evidence is weak, insufficient, inconsistent, or of doubtful credibility. [Citations]." [Internal quotation marks omitted]; see also United States v. Gurolla (9th Cir. 2003) 333 F3d 944, 951; U.S. v. Manarite (9th Cir. 1995) 44 F3d 1407, 1417-18.)

See also generally, FORECITE National™ 305.5.4 [Entrapment].

See FORECITE National™ 257.3.1.1 [Entrapment: Federal Test].

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PRACTICE NOTE: "'Examples of impermissible inducements, depending upon the circumstances, are extreme pleas of desperate illness, appeals based primarily on sympathy, sex, pity, or close personal friendship, offers of inordinate amounts of money and the like.' [Citation.]" (State v. Powell (IA 1977) 256 NW2d 235, 238.) "Police inducements which play on 'base' emotions are no less reprehensible than those which appeal to more altruistic feelings. In both cases the question is whether the police conduct would induce a normally law-abiding person to commit the crime." (People v. Hillary DEPUBLISHED (CA 1994) 23 CA4th 288, 294 [28 CR2d 415].)

    Other examples of impermissible conduct include: (a) persistent coaxing (Morales v. U.S. (6th Cir. 1958) 260 F2d 939; Woo Wai v. U.S. (9th Cir. 1915) 223 F 412, 414; (b) appeals to desperate illness (Wall v. U.S. (5th Cir. 1933) 65 F2d 993; (c) sympathy, pity or friendship (Sherman v. U.S. (1958) 356 US 369, 373 [78 SCt 819; 2 LEd2d 848]; Sorrells v. U.S. (1932) 287 US 435, 441 [53 SCt 210; 77 LEd 413]; Henderson v. U.S. (5th Cir. 1959) 261 F2d 909, 911); (d) offers of inordinate sums of money (Weathers v. U.S. (5th Cir. 1942) 126 F2d 118, 119; Morei v. U.S. (6th Cir. 1942) 127 F2d 827, 834-35); (e) paid government informer introduced the defendant to the use of drugs and gave him drugs for deliveries which led to the defendant's arrest (U.S. v. Silva (S.D.N.Y. 1959) 180 FSupp 557; see also People v. Barraza (CA 1979) 23C3d 675, 689-90 [153 CR 459] [friendship and sympathy].)

    Improper inducements also include threatening a defendant's family, threatening the defendant, forceful solicitation, playing upon certain sympathies and sentiments and using repeated suggestion. (U.S. v. Gendron (1st Cir. 1994) 18 F3d 955, 961.)

OPINION AVAILABLE: To read the Hillary opinion, click here. [Opinion Bank # O-310].

See also generally, FORECITE National™ 305.5.4 [Entrapment].

See FORECITE National™ 257.3.1.1 [Entrapment: Federal Test].

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    See FORECITE National™ Chapter 252.10.1.1 [Defense Theory: Defendant's Belief That He Or She Was Acting As Agent Of Law Enforcement].

See also generally, FORECITE National™ 305.5.4 [Entrapment].

See FORECITE National™ 257.3.1.1 [Entrapment: Federal Test].

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PRACTICE NOTE: It has been held that where the police supply the drugs or narcotics, which the defendant subsequently sells, an entrapment problem may exist. (See Pulliam v. State (MS 1991) 592 So2d 24, 26; State v. Kummer (ND 1992) 481 NW2d 437 [superseded by statute].)

Annotation, Entrapment As Defense To Charge Of Selling Or Supplying Narcotics Where Government Agents Supplied Narcotics To Defendant And Purchased Them From Him, 9 ALR5th 464.

See also generally, FORECITE National™ 305.5.4 [Entrapment].

See FORECITE National™ 257.3.1.1 [Entrapment: Federal Test].

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PRACTICE NOTE: "Some federal and state law enforcement agents are engaging in 'nontraditional' methods of ferreting out crime, for example, using sexual acts or romantic promises to encourage a defendant to participate in illegal activities. This conduct, though rarely meeting the stringent standards for dismissal based upon 'outrageous governmental conduct,' has serious entrapment considerations." (See Tarlow, "RICO Report: Fertile Ground For Entrapment Defense," The Champion (NACDL) March 1999, p. 38.)

    When a defendant has succumbed to the government’s sexual inducements an entrapment defense and jury instruction may be appropriate. (See e.g., U.S. v. Gamache (1st Cir. 1998) 156 F3d 1, 9-12 [entrapment available where police detective used defendant’s interest in her to elicit criminal statements and acts]; U.S. v. Cuervelo (2nd Cir. 1991) 949 F2d 559, 567-68 [case remanded for evidentiary hearing regarding governmental misconduct where DEA agent seduced defendant]; U.S. v. Simpson (9th Cir. 1987) 813 F2d 1462, 1468, fn. 4 [question raised as to whether use of sex as law enforcement tool would "shock the conscience"]; U.S. v. Prairie (9th Cir. 1978) 572 F2d 1316, 1319-20 [entrapment defense permissible where informer "emotionally and sexually seduced" him]; Tarlow, "RICO Report: Fertile Ground For Entrapment Defense," The Champion (NACDL) (March 1999), pp. 38-39.)

    "It should be common knowledge that sex involves physical and psychological desires so strong as to readily foster fantasies and to anesthetize or supplant normal rational reasoning and will ... Sex is much too strong and effective an inducement to be used as bait to catch only those with a predisposition to engage in specific criminal activity. When law enforcement agencies utilize confidential informants who use sex ... there is no way for the courts or anyone else to determine whether such inducement served only to uncover an existing propensity or created a new one." (State v. Banks (FL 1986) 499 So2d 894; see also People v. Martinez (CA 1984) 157 CA3d 660, 668 [203 CR 833] ["the use of an attractive young female undercover agent posing as an unemployed Las Vegas card dealer, introduced to appellant ... and, generally, acting the part of a loose woman who might trade sexual favors for narcotics, falls far short of an acceptable standard of police conduct and constitute[s] entrapment"].)

    See FORECITE National™ 257.3.2.6 [Entrapment: Use of Sexual Acts Or Romantic Promises As Entrapment]. 

See also generally, FORECITE National™ 305.5.4 [Entrapment].

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PRACTICE NOTE: See Taylor v. State (IN 1994) 629 NE2d 852, 855-56 [defendant’s testimony that he thought he was "under pressure" from the police to set up the drug deal was sufficient to raise entrapment issue].

See also generally, FORECITE National™ 305.5.4 [Entrapment].

See FORECITE National™ 257.3.1.1 [Entrapment: Federal Test].

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PRACTICE NOTE: "A normally-law-abiding person does not always take the high road in the face of pressures or inducements by the police or their agents. As Justice Frankfurter observed in Sherman v. United States (1958) 356 US 369, 372 [78 SCt 819; 2 LEd2d 848]: ‘Human nature is weak enough and sufficiently beset by temptations without government adding to them and generating crime.’ (356 US at 384 [Frankfurter, J., concurring].) The state ignores the purpose of the entrapment defense, which is to curb unsavory police conduct. Instead of focusing on the impermissible police conduct, the state chooses to blame [defendant] and to point out what he should have done differently. This argument is circuitous and leaves no situation where the defendant can assert entrapment as a defense." (Bradley v. Duncan (9th Cir. 2002) 315 F3d 1091, 1097.)

See also generally, FORECITE National™ 305.5.4 [Entrapment].

See FORECITE National™ 257.3.1.1 [Entrapment: Federal Test].